Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. III.

What Proof relevant to take away Writ.

Chisholm
v.
Chisholm

Date: 7 November 1673
Case No. No 90.

It being alleged against a bond of provision, that when the granter was on death-bed, he gave his wife warrant to cancel the bund, this was fonnd relevant to be proved by the wife and other witnesses.

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Chisholm of Hairhope having subscribed a bond of 7000 merks for the provision, of his younger children, and having afterward disponed his estate to his eldest son, caused him grant a bond of corroboration in favour of the children, which the father kept; and the mother having both bonds in the father's pocket after his death, and lent them to one of the children, he caused transcribe them by two notaries and four Witnesses, and having given them back to her they were abstracted, and the children pursue for proving the tenor of them. The heir's oath of calumny having been taken, he acknowledged there were such bonds, but remembered not the tenor of them, which, with the notary's attested doubles, were found sufficient adminicles to sustain the tenor, and the tenor was found proved by the oaths of the notaries and witnesses. It was alleged by the heir, That both his father's bond of provision and his corroboration were kept by his father, and never delivered to the children, and had no clause to be valid without delivery, so that at best they were in the father's power; and the mother did depone, that she found them in her husband's pockets after his death, and so they were never delivered, and two of the children were majors, and out of the family: And it was further desired, that witnesses ex officio might be examined, for proving that the father declared that he would not burden his son with these provisions, which is sufficient to shew the change of his mind and revocation of the bonds, especially seeing they were not in satisfaction of the executry, which was considerable, and fell to the children, and the estate was very mean, and unsuitable to such provisions; or at least that the mother, out of whose hands the bonds were gotten, and other witnesses, might be examined, that the father on his death bed ordered the mother to take the bonds, and cancel or burn them.

The Lords sustained the bonds, and would not admit of witnesses to be examined as to the father's declaring that he would not burden the son with these bonds, which could but declare his present purpose, which was mutable and ambulatory, seeing he did not cancel the bonds; but allowed witnesses to be examined, that when he was on death-bed, he gave his wife warrant to take the bonds and cancel them, and appointed her oath and other witnesses to be taken for that effect.

Fol. Dic. v. 2. p. 218. Stair, v. 2. p. 228.